The African Union Commission has criticized ICANN’s “dysfunctional accountability process” that has kept the proposed .africa gTLD in limbo for the last few years.
In a communique yesterday (pdf), the AUC also reiterated that .africa applicant ZA Central Registry has the support of both the AUC and its member states, and that governments used almost every avenue available to them to object to the rival DotConnectAfrica bid.
The letter reads:
The Africa region, African Internet stakeholders, the ZACR and AUC are the unfortunate victims of a dysfunctional accountability process and an independent review panel that did not delve more deeply to understand the new gTLD process, the role of governments in that process, and how the ICANN multistakeholder model functions in general.
A few weeks ago, an Independent Review Process panel controversially ruled that ICANN had treated DCA’s application unfairly, in violation of its bylaws, when it accepted Governmental Advisory Committee advice to reject it.
The panel said that ICANN should have at least asked the GAC for the rationale behind its advice, something that the new gTLD program’s rules did not require it to do.
One of the issues at the heart of the subsequent debate is whether ICANN inappropriately helped out ZACR’s bid by drafting an AUC letter of support and then tried to cover its actions up by inappropriately redacting information from the IRP ruling before publication.
On Friday, ICANN published a new version of the ruling that had these references restored, while retaining redactions related to the actions of Kenyan government officials.
We know what the still-redacted text says because Kieren McCarthy, writing for The Register, obtained a clean copy and published it a couple of weeks ago.
ICANN also promised to publish its reasoning if it makes redactions to any documents in future.
In a blog post on Friday, general counsel John Jeffrey said that ICANN helping the AUC draft its letter of support was not a unique case, nor was it inappropriate:
ICANN staff has helped many applicants and their supporters understand how to properly document support. Not only did we make a template support letter publicly available to all as part of the New gTLD Program Applicant Guidebook (see Appendix to Module 2), we have answered questions, received through our customer service channel, as to how interested parties can document support for a given gTLD application. In the case of ZA Central Registry, ICANN appropriately assisted the applicant in documenting support from the AUC.
Our actions surrounding the .AFRICA applications were not unique, since we assist any applicant who requests assistance, or who needs clarification in learning how best to document support or other matters. We have provided assistance to all applicants regarding their applications to the maximum extent possible.
On the claims that ICANN tried to “cover up” this assistance by redacting the IRP’s ruling and previous IRP filings, Jeffrey said that the information was covered by a confidentiality agreement agreed to by itself and DCA and endorsed by the IRP panel.
He said that ICANN was “motivated by our obligation to the community to post the document quickly and the competing, yet mandatory obligation, to respect confidential information while being as transparent as possible.”
He said ICANN attempted to reach out to those affected by the “confidential” parts of the ruling to seek permission to remove the redactions.
But McCarthy also seems to have seen emails exchanged between DCA and ICANN, and he says that ICANN redacted it over DCA’s objections.
McCarthy further says that ICANN only became interested in removing the redactions after he had already published the clean version of the ruling at The Reg — five days after the initial publication by ICANN.
Jeffrey’s post, which refers to “erroneous reporting” in an apparent allusion to McCarthy’s articles, nevertheless fails to address this claim, lending credibility to the cover-up allegations.
The .africa gTLD has been contracted to ZACR, but DCA’s rejected application has been returned to evaluation per the IRP’s ruling, where it is broadly expected to fail for want of governmental support.
Disclosure #1: I recently filed a Documentary Information Disclosure Policy request seeking the release of all the unredacted exhibits in DCA v ICANN. Given ICANN’s wont to usually respond to such requests only at the end of the full 30 days permitted by the policy, I should not expect to see an answer one way or the other until the last week of August.
Disclosure #2: As regular readers may already be aware, due to my long-held and never-disguised view that DCA was mad to apply for .africa without government support, I was once accused of being a part of a “racial conspiracy” against DCA on a blog I believe to be controlled by DCA. Naturally, after I stopped laughing, this libelous allegation pissed me off no end and enhanced my belief that DCA is nuts. Around the same time DCA also, under its own name, filed an “official complaint” (pdf) with ICANN, omitting the race card, alleging that I was part of a conspiracy against it.
Did the African Union Commission really use a letter written by ICANN to express its support for ZA Central Registry’s .africa bid?
Having now obtained and read it, I have my doubts.
I’m publishing it, so you can make your own mind up. Here it is (pdf).
That’s the letter that The Register’s Kieren McCarthy reported yesterday was “ICANN-drafted” and “duly signed by the AUC”
“Essentially, ICANN drafted a letter in support of ZACR, gave it to the AUC, and the AUC submitted the letter back to ICANN as evidence that ZACR should run dot-africa,” The Reg reported.
I don’t think that’s what happened.
What I see is a two-page letter that has one paragraph indisputably written by ICANN and whole bunch of other stuff that looks
incredibly remarkably like it was written by the AUC and ZACR.
And that one ICANN paragraph was drawn from the new gTLD program’s Applicant Guidebook, where it was available to all governments.
The Reg reported that ICANN, in the unredacted ruling of the Independent Review Panel, admitted it drafted the letter.
What The Reg didn’t report is that ICANN merely admitted to sending the AUC a letter based on the aforementioned AGB template, and that it was subsequently heavily revised by the AUC.
It was not, I believe, a simple case of the AUC putting its letterhead and John Hancock on an ICANN missive.
I believe that ZACR had quite a big hand in the redrafting too. The stylized “.africa (dotAfrica)” is not how ICANN refers to gTLDs, but it is how ZACR refers to its own brand.
The letter was written in order to satisfy the requirements of the Geographic Names Panel, which reviews new gTLD applications for the required government support.
The original AUC letter (read it here) was simply one paragraph confirming that ZACR had been appointed .africa registry, as the winner of an African Union RFP process.
It didn’t have enough information, or was not specific and formal enough, for the GNP, which issued a “Clarifying Question”.
In response to the CQ, it seems AUC reached out to ICANN, ICANN sent over something not dissimilar to its AGB template, the AUC and ZACR redrafted, edited and embellished it and sent it to ICANN to support their .africa application.
Did ICANN act inappropriately? Maybe. But I’m losing my enthusiasm for thinking about this as a massive scandal.
ICANN’s board of directors has un-rejected DotConnectAfrica’s application for the new gTLD .africa.
Speaking at the Internet Governance Forum USA in Washington DC in the last half hour, ICANN chair Steve Crocker revealed the following:
We passed a resolution acknowledging the panel’s report — decision — accepting it and taking action. The primary action is to put the the DotConnectAfrica Trust application back in to the evaluation process. And there are other aspects of the panel’s decision that we will have to deal with later. This does not represent a final decision about anything. It just moves that process forward. There will be posting of the resolution and press release probably as we are sitting here.
If you want to catch it yourself, rewind the live stream here to roughly 59 minutes.
This story will be updated just as soon as the press release and resolution are published.
The resolution has been published.
In it, the board agrees to continue to delay the delegation of .africa to ZA Central Registry, which is the contracted party for the gTLD, to pay the IRP costs as ordered by the panel, and to return DCA’s application to the evaluation process.
It also addresses the fact that the Governmental Advisory Committee has given formal advice that the DCA bid should not be approved.
The ICANN board says that because it has not decided to approve or delegate .africa to DCA, it’s technically not going against GAC advice at this time.
It will also ask GAC to respond to the IRP panel’s criticism of it for providing advice against DCA without transparent justification. The resolution says:
the Board will ask the GAC if it wishes to refine that advice and/or provide the Board with further information regarding that advice and/or otherwise address the concerns raised in the Declaration.
It was essentially the GAC’s lack of explanation, and ICANN’s lack of curiosity about that lack of explanation, that cost ICANN the case and hundreds of thousands of dollars in fees.
How the GAC responds will be interesting. There’s now a solid case to be made that it’s going to have to start putting its rationales in its advice, rather like the ICANN board does with its resolutions.
Top ICANN executives helped the African Union Commission win the .africa gTLD on behalf of its selected registry, according to a report.
Kieren McCarthy at The Register scooped last night that Dai-Trang Nguyen, head of gTLD operations at ICANN, drafted the letter that the AU used to demonstrate governmental support for ZA Central Registry’s bid.
The basis of the report is the unredacted version of the Independent Review Process panel’s ruling in the DotConnectAfrica case.
McCarthy reports that the uncensored document shows ICANN admitting that Nguyen wrote the AU’s letter, but that “did not violate any policy” and that there was “absolutely nothing wrong with ICANN staff assisting the AUC.”
Apparently, the original AU-drafted letter did not meet the requirements of the Geographic Names Panel, generating a “Clarifying Question”, so the AU reached out to ICANN for help creating a letter that would tick the correct boxes.
The unredacted ruling also contains an allegation that ICANN told InterConnect — one of the three corporate members of the GNP — that the AU’s letter should be taken as representing all of its member states, El Reg reports.
DotConnectAfrica is expected to be shortly returned to the new gTLD application process, and then kicked out again due to its failure to meet the GNP’s criteria of support from 60% of African governments.
I’m in two minds about how damaging these new revelations are.
On the one hand, ICANN staff intervening directly in an Initial Evaluation for a contested gTLD looks incredibly bad for the organization’s neutrality.
One would not expect ICANN to draft, for example, a letter of support for a Community Priority Evaluation applicant.
I don’t think it changes the ultimate outcome for DCA, but it may have inappropriately smoothed the path to approval for ZACR.
On the other hand, the new gTLD program’s Applicant Guidebook actually contains a two-page “Sample Letter of Government Support” that governments were encouraged to print off on letterheaded paper, sign, and submit.
Giving governments assistance with their support letters was in fact baked into the program from the start.
So did the AUC get special treatment in this case, or did Nguyen just send over the AGB sample letter (or a version of it)? That may or may not become clear if and when McCarthy publishes the unredacted ruling, which he has indicated he hopes to do.
A related question might be: how did the AUC screw up its original letter so badly, given the existence of a compliant sample letter?
The optics are many times worse for ICANN because all this stuff was originally redacted, making it look like ICANN was trying to cover up its involvement.
But the redactions were not a unilateral ICANN decision.
ICANN, DCA and the IRP panel agreed after negotiation that some documents revealed during disclosure should be treated confidentially, according to this September 2014 order (pdf). References to these documents were redacted in all of the IRP’s documents, not just the ruling.
What the revelations certainly seem to show is another example of ICANN toadying up to governments, which really has to stop.
DotConnectAfrica thinks it is going to get the .africa gTLD, following its successful Independent Review Process case against ICANN.
In a press release today, the company hailed last week’s ruling as a “resounding victory”.
DCA CEO Sophia Bekele is quoted as saying:
Going forward, we now expect ICANN to accept the binding IRP outcome, refrain from any further plans to delegate .Africa to the ZA Central Registry who should now be removed immediately from the new gTLD program; and cooperate fully with DCA Trust to ensure that the IRP Panel ruling is implemented so that .Africa can be delegated to DotConnectAfrica Trust
That’s right, Bekele reckons the IRP win means ICANN has to kick rival .africa applicant ZACR — which has already signed a Registry Agreement for the string — out of the new gTLD program.
Needless to say, it doesn’t.
The IRP panel refused DCA’s demands that ZACR be kicked out, and by ruling against DCA on a number of other counts, it essentially signed its application’s death warrant.
Bekele goes on to make three startling assertions about the case that have little to no basis in the IRP panel’s ruling:
During the IRP, DotConnectAfrica Trust clearly established three major findings: that ZA Central Registry lacked any valid endorsements for the .Africa string that it applied for; and that the purported Governmental Advisory Committee Objection Advice against our .Africa application was not by consensus; and that the ICANN Board had seriously erred in accepting the GAC Advice. The truth has prevailed and we are absolutely happy with the IRP Panel decision.
“I also give thanks to God for helping to correct this act of victimization that was committed against DCA Trust,” she added.
I’m not making that up. She really said that.
In Bekele’s opinion, DCA “established” three major findings, but “alleged” would be a better word. The IRP panel largely disagreed with or ignored the claims.
First, there’s nothing in the IRP’s decision that shows ZACR “lacked any valid endorsement” for its .africa bid.
ZACR has the unambiguous support of the African Union and says on its web site it has backing from 78% of African nations. The IRP declaration doesn’t even mention these endorsements, let alone question them.
Second, the IRP panel does not say that the GAC’s advice against DCA’s application lacked consensus. It says it lacked fairness and transparency, but did not dispute that it had consensus.
Third, the IRP did not conclude that ICANN should not have accepted that GAC advice, just that it should have carried it a bit more due diligence.
Finally, there’s nothing in the IRP’s declaration that gives DCA a chance of winning the .africa gTLD. In fact, the panel specifically decided not to give DCA that chance.
The closest the panel came to addressing any of DCA’s myriad accusations of ICANN wrongdoing is described in its ruling:
DCA Trust has criticized ICANN for its various actions and decisions throughout this IRP and ICANN has responded to each of these criticisms in detail. However, the Panel, having carefully considered these criticisms and decided that the above is dispositive of this IRP, it does not find it necessary to determine who was right, to what extent and for what reasons in respect to the other criticisms and other alleged shortcomings of the ICANN Board identified by DCA Trust.
So what happens to .africa now?
ICANN’s board of directors will discuss the IRP declaration at its next meeting, July 28, so we don’t yet know for certain how things will proceed.
However, some things seem safe bets.
The IRP panel suggested that ICANN should continue to refrain from delegating .africa, which has been on hold since May 2014, to ZACR. I think it likely that ICANN will follow this recommendation.
It also seems possible that ICANN may decide to reconsider (that is, consider again, rather than necessarily overturn) its decision to accept the GAC’s consensus objection to DCA’s .africa bid.
The panel’s key criticism of ICANN was that it failed to seek a rationale from the GAC for its objection. So ICANN may decide to seek such a rationale before reconsidering the advice.
The panel also told ICANN that DCA’s application, which had been rejected, should re-enter the application process.
Assuming ICANN accepts this recommendation (and I think it will, given the political climate), the first step would to be for DCA to finish its Initial Evaluation. ICANN rejected the DCA bid, based on GAC advice, before the IE panels finalized their evaluation DCA’s application.
Part of the IE process is the Geographic Names Review, which determines whether a string is “geographic” under ICANN’s definition and whether the applicant has the necessary support — 60% of national governments in .africa’s case — to be allowed to proceed.
DCA does not have this support, and it knows that this means its application is on life support.
It had asked the IRP panel to rule that ICANN should either give it 18 months to try to gather support, or to rule that it already has the support, essentially trying to lawyer itself into a position where it had a shot of winning .africa.
But the panel rejected both of these demands.
While DCA seems to have given up trying to convince people that its 2009 letter of support from the AU is still valid, it still holds that a 2008 letter from the executive secretary of the United Nations Economic Commission for Africa shows the requisite 60% support.
I don’t know whether this letter was ever formally withdrawn, but UNECA is today listed as a ZACR supporter.
However, even if the Geographic Names Panel ruled that DCA had passed its 60% threshold, the application would still fail the geographic review.
The rules state that “there may be no more than one written statement of objection” from an affected government, and DCA received GAC Early Warnings from 16 national governments as well as the AU itself.
No matter what DCA says in its press releases now, its application is still doomed.